XCHRX THE ALMERINDA

HCAJ222/1994

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMIRALTY JURISDICTION NO.222 OF 1994

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JUDGMENT ON COSTS

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1. On 30 October judgment was delivered upon the defendants' application to dismiss this action for want of prosecution and upon the plaintiffs' application for leave to amend the Statement of Claim and Answers to Interrogatories.

2. I now deal with the costs orders consequent upon that judgment.

(i) The defendants' summons to dismiss dated 18 February 2000

3. Mr Reyes for the plaintiffs asks for his costs of this application. He says that he has won, as indeed is the case.

4. To the contrary, Mr Sussex SC for the defendants maintains that his clients are entitled to a costs order in their favour. In this connection he drew the court's attention to the recent case of AXA Insurance Co. Ltd v. Swire Fraser Ltd, The Times, 19 January 2000, a decision of the English Court of Appeal, in particular the observation of Tuckey LJ to the effect that AXA, the successful appellant in that case (which had been struck out below), should be ordered to pay the costs of the strike out proceedings "which they brought on their own head". In this context Mr Sussex also relied on The "Mollymawk", [1974] 1 Ll LR 32 at page 38 wherein Brandon J (as he then was) took a "serious view of unwarrantable delay in the conduct of cases" and thought that "although the defendants have ultimately failed in these proceedings, they acted reasonably in seeking an order of the Court and the mere fact that they have failed ought not in these circumstances to be decisive of the incidence of costs".

5. At the end of the day, each case is evaluated in terms of its own particular facts, the court exercising its discretion in light of those facts. After reflecting on all the circumstances of this case, and having taken into account the arguments on each side, in my judgment the most appropriate order as to costs on this application is that there should be no order as to costs. I so hold.

(ii) The plaintiffs' application to amend dated 22 December 1999

6. Once again the lines of argument are clearly drawn. For his part Mr Reyes properly accepts that the costs of and occasioned by the plaintiffs' amendments be to the defendants, save that the costs of the hearing of the application should be to his clients, the plaintiffs.

7. Mr Sussex suggests that the costs order in this case is not so straightforward. He points to the chequered history of this amendment application, and to the fact that when issued, the summons to amend, dated 22 December 1999, had annexed thereto the version of the proposed amended pleading which, for convenience, has been referred to throughout as 'DAMSOC 3', and that this had, as its central feature, the ATL bill of lading, reliance on which Mr Reyes disavowed at the outset of argument. It was only when the skeleton argument of Mr Reyes was served, on 2 September, said Mr Sussex, that he saw the format of DAMSOC 4, which signally changed the situation. Whilst he accepted (subject to the appeal now filed) that he had lost the amendment argument, he submitted that in the circumstances his clients should recover such costs incurred up to 4 September, that is, two days after the skeleton argument.

8. After considering the arguments, I take the view that some costs adjustment should be made for the change of stance but lately reflected in DAMSOC 4, although I am unpersuaded that the appropriate order is that as suggested by Mr Sussex. I am also mindful of the practical problems faced by the Taxing Master if a costs order is permitted to become overly complex.

9. In my judgment the correct order upon this application to amend is thus : save that the costs of and occasioned by the plaintiffs' amendments be to the defendants in any event, the plaintiffs are to have 70% of the costs of the hearing of the application to amend in any event, such costs to be taxed if not agreed.

10. I make no order as to the costs of this hearing which are referable to the amendment summons.

(iii) Consequential directions

11. Consequent upon the grant of leave to amend the Statement of Claim in terms of DAMSOC 4, I made certain immediate directions (at page 24 of the judgment dated 30 October 2000), at the same time noting that at the forthcoming costs hearing I would also deal with such further directions as might be required prior to trial.

12. The directions then made as to the amendment of the defence "within 21 days of the order herein" have not been complied with, I am told by Mr Sussex, who further submitted that in light of the appeal now lodged, pursuant to a Notice of Appeal filed on 16 November 2000 against the grant of leave to the plaintiffs to amend in terms of DAMSOC 4, that the issue of directions should now, in effect, be suspended pending the hearing of this appeal. Mr Sussex submitted that the shape of the case had now changed, and that costs would be saved should the course he suggested be adopted.

13. Mr Reyes took issue with this stance. From his viewpoint no new matters had been raised in terms of the substantive facts, and he submitted that the amendments now permitted would have no impact upon discovery or upon any other directions, nor, in the event of a successful appeal, did he contemplate any great wastage of costs, given that he maintained his alternative plea in bailment. In this connection, Mr Reyes handed up a draft of the directions which he suggested should now be ordered.

14. I am disinclined now to halt this case pending resolution of the defendants' appeal against the grant of leave to amend in terms of DAMSOC 4. No appeal date has yet been set and I have been given no indication of when this appeal is likely to take place. In the circumstances, I decline the invitation to suspend further directions, or, for that matter, to ignore those already made which now have been the subject of a perfected order.

15. In light of this conclusion, therefore, Mr Sussex is, as he has pointed out, already out of time to file and serve his amended Defence, and I will treat his application this morning as an application so to extend time. Accordingly, I now extend the time granted to the defendants to amend their Defence to the Amended Statement of Claim to 4.00 pm on Friday 22 December 2000.

16. I further extend the time for service of an amended Reply, if any, by an additional seven days, given the intervention of the Christmas break.

17. I make the following additional directions :-

(i) supplementary Lists of Documents be exchanged within 28 days after service of the amended Reply, with inspection 14 days thereafter;

(ii) witness statements be exchanged 35 days thereafter;

(iii) expert reports be exchanged within 42 days thereafter; and

(iv) there be liberty to apply for further directions.

18. Such costs as are attributable to the directions element of this hearing are to be costs in the cause.